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Strough v. General Motors LLC

United States District Court, D. Colorado

June 4, 2019

AMBER STROUGH, a citizen of Colorado, individually, as mother of Macayla Razes, as next friend of R.S., and as Personal Representative of Macayla Razes, deceased, R.S., a citizen of Nebraska and a minor, by and through his grandmother and next friend, Amber Strough, and MADISON STROUGH, a citizen of Colorado, Plaintiffs,
GENERAL MOTORS LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS INC., a Delaware corporation, Defendants.


          N. Reid Neureiter United States Magistrate Judge

         This matter comes before the Court on Plaintiff's Motion in Support of Revising the Protective Order. (Dkt. #57.)


         This is a product liability lawsuit brought against an automobile manufacturer (General Motors LLC - “GM”) and the manufacturer of a seatbelt system (TRW Vehicle Safety Systems Inc. - “TRW”), arising from a single car roll-over accident where Macayla Razes was ejected from a 2004 Chevy Impala and died. Plaintiff appears to be searching for documents and other evidence to support multiple, alternative, theories of liability.

         First, Plaintiff claims that the 2004 Impala was defectively designed because it was not equipped with Electronic Stability Control (“ESC”), a feature which improves a vehicle's stability by detecting and reducing loss of traction by automatically applying the brakes to help “steer” a vehicle when ESC detects a loss of steering control. GM's ESC system was first introduced in select models in 1996-97. The National Highway Traffic Safety Administration required all new passenger vehicles sold in the U.S. to be equipped with ESC as of the 2012 model year. Plaintiff's theory of defective design is that this proven safety-enhancing technology was available by the 2004 model year, and the failure to install it made the vehicle unreasonably dangerous and caused the accident.

         Next, Plaintiff claims that the Impala's seatbelt system, manufactured and designed by TRW, failed or unlatched during the rollover, allowing her to be ejected. Finally, Plaintiff alleges that the Impala lacked overall rollover crashworthiness because it was not equipped with side-window or rear-window glass that was sufficient to withstand foreseeable crash forces sustained during a rollover and would have prevented Ms. Razes from being ejected.

         The Court entered a protective order in this case on April 29, 2019 (“Protective Order”). (Dkt. #52.) The Protective Order followed the suggestion of Defendants in that it did not contain a so-called “sharing” provision which would allow Plaintiff's counsel to share the information obtained in discovery with “similarly situated litigants”-meaning lawyers in other lawsuits around the country involving similar issues against these same defendants.

         However, Plaintiff felt she had not had an adequate opportunity to brief and argue for the inclusion of a sharing provision prior to the Court's entry of the Protective Order. Therefore, the Court allowed briefing on the subject. See May 15, 2019 Courtroom Minutes (Dkt. #56). On May 22, 2019, Plaintiff filed her brief in the form of a Motion/Brief in Support of Revising the Protective Order. (Dkt. #57.) Defendants filed a joint Response on May 29, 2019. (Dkt. #61.) The Court has reviewed the briefs and relevant cited authorities. Plaintiff's motion to modify or revise the Protective Order to include a “sharing” provision is DENIED.


         Plaintiff begins her brief by asserting that the “real reason” GM requests a protective order without a sharing provision is “to prevent other injured customers from obtaining access to important safety documents and to keep secret evidence of its negligence and misconduct.” (Dkt. #57 at 1.) This is unnecessary, unsupported hyperbole and including such a statement in the introduction to a legal brief is counterproductive.

         Plaintiff also argues that GM is not legally entitled to what Plaintiff calls a “blanket secrecy order” and that the fruits of pretrial discovery are, absent a court order to the contrary, “presumptively public.” Plaintiff cites Nixon v. Warner, 435 U.S. 589 (1978), for the proposition that “[a]ccess to case records and files should be denied only when such access has become a vehicle for an improper purpose.” (Dkt. #57 at 2.) Plaintiff also cites a case out of the Northern District of Georgia, Parsons v. General Motors Corp., 85 F.R.D. 724 (N.D.Ga. 1980), for the proposition that “[c]ourts have long rejected blanket secrecy orders based on GM's claim that it needs to be protected from competitors.” And indeed, the Parsons case begins its own analysis by stating that the “general rule is that discovery and trial in the federal court are on open records available to the public.” 85 F.R.D. at 726.

         But the Parsons case is outdated and Plaintiff is mistaken. There is a strong presumption in favor of public access to documents and materials filed in court and used in public court proceedings. However, materials produced to an adverse party via the discovery process are treated differently from materials submitted to a court for adjudicative purposes or introduced into evidence during trial. As the Supreme Court explained in Seattle Times Co. v. Rheinhardt, 467 U.S. 20 (1984), judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in other contexts. The Rules authorizing pre-trial discovery are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only through discovery for purposes of trying his suit. And restraints placed on discovered information are not a restriction on a traditionally public source of information. Seattle Times, 467 U.S. at 32-34.

         The Court's objective is to get this case ready for trial promptly. Delays in discovery while the parties fight about whether documents can or cannot be shared with other lawyers who may seek to bring other cases in the future do not further the objective of getting this case ready for trial. It may actually cause delay in the production of documents as Defendants act more deliberately in deciding whether to produce or object to discovery, concerned that any material produced in discovery will be shared widely among the Plaintiffs' Bar across the country for no verifiable legitimate purpose.

         As Judge Boland once said, citing Seattle Times, “Civil discovery is a device to allow parties to obtain information for the purpose of preparing and trying a lawsuit. Consequently, and contrary to plaintiff's argument, a party has no right to make unrestricted disclosure of the information obtained through ...

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